Intellectual Property, Job Searches

So You Want To Be An IP Lawyer Without A Technical Background (Part 1)

If you're creative with your job search and willing to go non-Biglaw, more doors will be open.

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Not the only path to IP law.

Sometimes, a law professor will send a law student my way seeking intellectual property career advice. More often than not, this student will tell me that he does not have a hard-sciences or engineering background, and asks whether he can still have a career in intellectual property.

While it is certainly easier to get a job in intellectual property if you are patent-bar eligible, as this English major can attest to (what was I thinking when I switched from mechanical engineering to humanities?! I didn’t even like most of my English classes in college), it is certainly doable. And lest you think I’m only talking about copyright, I have filed briefs before the Federal Circuit and Supreme Court on gene patents and self-replicating technology, counseled on technology transfer agreements for patented inventions, and reviewed licensing agreements. You can definitely have a career in IP without hard sciences, including in patent law.

Before we get into what jobs are open, let’s quickly recap what you can’t do if you don’t have a science/engineering background. You will not be able to sit for the patent bar. Period. You (generally) can’t do patent prosecution before the USPTO Patent Trial and Appeal Board (PTAB). As a result, some law firms will not want to hire you on their intellectual property teams because they want someone who can work across copyright, trademarks, and patents. And that’s about it. Everything else is (at least theoretically) open to you.

Let’s talk about “soft” IP — copyright, trademark and trade secrets — for a minute, since that is going to be the easiest path. You absolutely do not need hard sciences for anything related to copyright and trademarks, including in a law firm. This is the direction that I often steer law students in, simply because it’s the path that is most open. Law students who tell me they want to do IP without a science background typically don’t want to do patents, anyway. There’s a whole world of copyright and trademark law, which is very interesting — music licensing, standards of copyright protection, determining fair use applications, and so much more. I have quite a few former interns who are working in trademarks or copyright now, either at firms or in the federal government. Basically, you can practice “soft IP” anywhere without a technical background.

Just because you don’t have a hard-science background, though, does not mean you are limited to copyright and trademarks. You can still litigate patent issues, draft licensing and technology transfer agreements, and work on patent policy. Even law firms who won’t take you unless you have the technical background and patent bar may still have openings for on a government affairs team, so you can work on the policy side. But if you still have your heart set on a Biglaw firm doing patent litigation, there are practitioners out there who hold a B.A/J.D. Just check out bios on the firm websites to get an idea of the law firms that are open to those without a technical background.

Policy work — in which you are meeting with federal agency and administration officials, talking to members of Congress or (more likely) their staff, or working on public campaigns — doesn’t require any knowledge of hard sciences. Policy is usually bigger-picture and very outcome-focused and, unlike reading patent specifications where you actually need to know how something works or what someone is claiming, trying to get Congress to put a halt to patent trolls, for example, is something that anyone can debate. You don’t need to look at specifications or have knowledge of chemistry to understand how patent term extensions or patent linkage (linking patent status and regulatory approval status for drugs) will affect access to medicines. You don’t need to learn about engineering to survey patent landscapes in other countries and determine how they do or do not comply with the mandates of treaty obligations.

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Even in terms of patent litigation, you don’t need a science background. Take, for example, Association for Molecular Pathology v. Myriad Genetics, a case that centered around the patent eligibility of the BRCA1/2 gene, a gene associated with breast cancer risk. The case ultimately went up to SCOTUS, which unanimously found that a segment of DNA is a product of nature and not patent eligible. The ACLU, which served as lead counsel, had a scientist on board to talk through the technical points, but the litigation was done by Chris Hansen and Sandra Park, who are not patent lawyers.  I served as lead counsel for four amicus briefs throughout the course of the litigation, focusing on the purpose of the patent system, why patenting of DNA preempts other uses and future innovations, and alternatives to the patent system; there was no reason for me to get into the details of biology (though, of course, ACLU’s attorneys did). Even when I represented parties in appellate cases, the arguments were more about interpretations of the law, and a relatively basic understanding of the technology itself sufficed.

Finally, when I still practiced patent policy, I reviewed technology transfer agreements and licenses which, at the end of the day, are just contracts about specific technology.  Universities will hire attorneys for their technology transfer offices, companies will hire licensing attorneys, and many law firms deal with these issues.

Although I do suggest doing internships and clinics and taking classes in areas you’re interested in practicing, I never took patents, even though my very first job in the intellectual property space was patent policy oriented. I ended up falling into the job because of my interest in access to medicines, which is heavily intertwined with patent policies because the monopolies granted on patented medicines allow companies to price life-saving drugs out of range for those in developing countries, as well as many in the United States. Early on, I wished I had taken patent law during law school, but over time you pick it up, just as you would for any other topic. I bought patent primers, read some well-known blogs by patent law professors, read law review article after law review article, and talked with many practitioners to pick up what I needed. No doubt that patent law or a hard-science background would have been useful, but you can survive without.

While having a hard-sciences background is beneficial, it is certainly not mandatory. If you’re creative with your job search and willing to go down non-Biglaw firm paths, even more doors will be open. I’ll cover more specifics on that in part 2.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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